but in trover, where the damages are merely nominal, the averment of value is merely formal: Woodruff v. Cook, 25 Barb. 505.

Demand, Averment of. Where a demand is a prerequisite to bringing suit, it must be alleged in the complaint and proved on the trial: Moore v. Hudson R. R. Co., 12 Barb. 156; Boutwell v. O'Keefe, 32 Id. 434; State v. Cowles, 5 Ohio St. 87. And if it be expressly agreed by contract that neither party shall be liable for nonperformance until after demand, a suit cannot be maintained without alleging demand: Ferner v. Williams, 37 Barb. 9. A demand before suit is necessary in an action for detention of property of which one became lawfully possessed: Baird v. Walker, 12 Id. 298; Gillett v. Roberts, 57 N. Y. 28; Simmons v. Lyons, 55 Id. 671. It is a general rule that when the possession of property is originally acquired by a tort, no demand previous to the institution of suit for its recovery is necessary. It is only when the original possession is lawful, and the action relies upon the unlawful detention, that a demand is required: Ledley v. Hays, 1 Cal. 160; Paige v. O'Neal, 12 Id. 495; Ham v. Henderson, 50 Id. 367; Sargent v. Sturm, 23 Id. 360. Thus, if a sheriff takes personal property of one person, under a process against another, though in possession of that other, he takes it tortiously, and no demand is necessary: Boulware v. Craddock, 30 Id. 190; Wellman v. English, 38 Id. 583. Where the defendant contracted with a factor who was in his debt for certain goods, but before he took them away had notice, sufficient to put him him on inquiry, that a portion of them belonged to another, his taking such portion was an unlawful assumption of ownership and a conversion of the property, and no demand was necessary previous to bringing suit: Scriber v. Masten, 11 Id. 303. Certain personal property owned by plaintiff, but which was used by A. & G. under a contract of hire, was attached by the sheriff; plaintiff having made a demand for the property upon the sheriff, but not upon A. & G., it was held that the demand, if necessary at all, was made on the proper person: Woodworth v. Knowlton, 22 Id. 164. And where persons fraudulently intend to procure goods without payment, the fraud is consummated

when the possession of the goods is Oct. 11, 1862, obtained without making payment on $65. delivery, or on call, according to the terms of sale. A payment made after that time, though it might satisfy the debt for the price of the goods, would not remove the taint of fraud from the transaction by which the goods were obtained, and a demand for the goods before bringing suit is unnecessary: Stewart v. Levy, 36 Id. 165.

A co-tenant must make a demand before suing to be admitted to possession, and a denial is proof of ouster by the co-tenant: Miller v. Myers, 46 Cal. 538, 539; Hebrard v. Jefferson G. & S. M. Co., 33 Id. 290. In ejectment by landlord against tenant, where the latter denies the plaintiff's title in his answer, no demand is necessary: Smith v. Ogg Shaw, 16 Id. 90.

A denial in the answer that the relation of trustee and cestui que trust exists between the parties dispenses with the necessity of averring in the complaint, or proving, a prior demand and refusal: Parrott v. Byers, 40 Id. 614. If a vendor sells and conveys land with a verbal agreement that the vendee shall pay the purchase-money when demanded, no demand is necessary before bringing suit to enforce the vendor's lien: Gallagher v. Mars, 50 Id. 23.

As to money claims, a party receiving money to the use of another is rightfully in possession, and cannot be sued until after the same is demanded: Reina v. Cross, 6 Cal. 31. In an action against an agent for not accounting, etc., a request to account and pay over the balance must be stated: 1 Ch. Pl., sec. 331, and the cases there cited; Bushnell v. McCauley, 7 Id. 422. There is no necessity for a demand for damages in a suit against the sureties upon an injunction bond: Browner v. Davis, 15 Id. 11. In an action on a promissory note, payable on demand, it is not necessary to aver or prove an actual demand before bringing suit, the institution of the suit being a demand: Zeil v. Dukes, 12 Id. 479. No averment of demand is necessary in an action on a note payable on demand: Hirst v. Brooks, 50 Barb. 334; Howland v. Edmonds, 24 N. Y. 307; IIerrick v. Woolverton, 41 Id. 581; Merritt v. Todd, 23 N. Y. 28; S. C., 80 Ain. Dec. 243, and see the extended_note thereto; Pierce v. Fothergill, 2 Bing.

N. C. 167; nor in an action upon contract to pay money absolutely: East River Bank v. Rogers, 7 Bosw. 493; Lake Ontario etc. R. R. Co. v. Mason, 16 N. Y. 451. The same rule is applied to other instruments for the payment of money: Halleck v. Moss, 22 Cal. 278; Gibbs v. Southam, 5 Barn. & Adol. 911; Baughan v. Graham, 1 How. 220; Husbands v. Vincent, 5 Harr. (Del.) 268; Wyman v. Fowler, 3 McLean, 467; Dyer v. Rich, 1 Met. 180. Where defendant agreed to pay a sum of money in grain at the market price on a certain day named, it was held that after the day named the plaintiff was under no obligation to receive payment in grain, and no demand of the grain by him was necessary. The amount became a debt in money from the time of default: Marshall v. Ferguson, 23 Cal. 69; Goodwin v. Holbrook, 4 Wend. 377; Peck v. Hubbard, 11 Vt. 612; Townsend v. Wells, 3 Day, 327; 2 Parsons on Contracts, 163.

If a demand is necessary to fix the liability of sureties, it must be made before suit, and averred and proved: Morgan v. Menzies, 65 Cal. 243. Generally a demand of the principal debtor is necessary to fix the liability of the guarantor of a debt: Milliken v. Byerly, 6 How. Pr. 218. A promise by an indorser or guarantor, after maturity, to pay the note, with notice of the laches of the holder in not demanding payment of the payor, dispenses with the necessity of proving demand and notice: Curtis v. Sprague, 51 Cal. 239.

Concerning the form of demand, where the demand is required to be made in a particular form, the complaint should allege that it was made in such form: Carpenter v. Brown, 6 Barb. 147; Bush v. Stevens, 24 Wend. 156. In a case where there was a specific averment in the complaint that defendants were requested and refused to pay the amount, which fact was not denied by the answer, and the complaint was duly sworn to, the supreme court declined to allow any objection to be raised to the averment for the first time, after verdict and judgment in the appellate court: Mills v. Barney, 22 Cal. 251. Where plaintiff averred that defendant had failed, refused, and neglected to return certain personal property to plaintiff, but had, since a day named, wrongfully kept and detained said property

and the whole thereof from plaintiff, and still kept and detained the same, this was held not intended to be the averment of a special and formal demand and refusal to deliver, within the meaning of the law applicable to pleadings in this class of actions: Campbell v. Jones, 38 Id. 509–511. A draft which does not specify the kind of money in which it is payable is payable in currency, whether drawn abroad or not; and a demand of payment thereof in gold coin by a notary, with a protest, etc., is not sufficient to charge the drawer: Langenberger v. Kroger, 48 Id. 150. Where a demand is necessary, the mere fact that a greater sum is demanded than the party is entitled to will not defeat the action, unless the defendant shows that, upon such demand, he offered to pay the sum the plaintiff was really entitled to, and that it was refused: Dudley v. Thomas, 23 Id. 370. Where a demand is made by attorney, the party has a right to require reasonable evidence of the authority of the individual to make it; but if no exception is taken at the time, then a subsequent commencement of a suit by the party in whose behalf it was made, claiming under such demand, is a ratification of it, and is prima facie evidence, at least, that it was made by his authority: Baxter v. McKinlay, 16 Id. 77; Payne v. Smith, 12 N. H. 34; Connah v. Hale, 23 Wend. 462. A demand upon one joint debtor is a demand on both and may be so averred: Baird v. Walker, 12 Barb. 298; Geisler v. Acosta, 9 N. Y. 227.

Conditions, averment of performance. Where a right of action depends on the performance of conditions precedent, such performance must be averred: Buford v. N. Y. L. I. Co., 5 Or. 334; Oakley v. Morton, 11 N. Y. 25; Wolfe v. Howes, 10 Id. 197; Webb v. Smith, 6 Col. 365. And see Ferris v. Purdy, 10 Johns. 359; Robb v. Montgomery, 20 Id. 15; Fickett v. Brice, 22 How. Pr. 194; Jennings v. Moss, 4 Tex. 452; Clendennan v. Paulsel, 3 Mo. 230; Harrison v. Taylor, 3 A. K. Marsh. 168; Wilcox v. Cohn, 5 Blatchf. 346; Lightfoot v. Cole, 1 Wis. 26. Or at least the performance of all the conditions on the part of the pleader, generally: Home Ins. Co. v. Duke, 43 Ind. 418; Lowry v. Megee, 52 Id. 107; Crawford v. Satterfield, 27 Ohio St. 421; Smith v. Railroad Co., 19 Wis. 325; Insurance Co. v. McGookey, 33

Ohio St. 555; Schobacher v. Germantown etc. Ins. Co., 59 Wis. 86. And sco Ferrer v. Home Mut. Ins. Co., 47 Cal. 416; Etna Ins. Co. v. Kittles, 81 Ind. 95; Richardson v. North Mo. Ins. Co., 57 Mo. 413.

In this state this latter averment is sufficient: See § 87 [86], post. But if a party undertakes to set out specifically the fact of the performance, he must do so with all particularity and strictness: Home Ins. Co. v. Duke, 43 Ind. 418; Frankfort Bank v. Countryman, 11 Wis. 398; Davis v. Barron, 13 Id. 227. Setting out performance of a condition precedent in the language of the condition is sufficient: Smith v. Lloyd, 16 Gratt. 295. Where one pleads an excuse for non-performance, he should state his readiness to perform and the facts constituting the excuse: Oakley v. Morton, 11 N. Y. 25; Smith v. Brown, 17 Barb. 431; Home Ins. Co. v. Duke, 43 Ind. 418; Cornwell v. Haight, 21 N. Y. 462. It is unnecessary to make a tender of performance when it would be wholly nugatory: Karker v. Haverly, 50 Barb. 79; Read v. Lambert, 10 Abb. Pr., N. S., 428. In case of mutual and reciprocal conditions to be performed at the same time, plaintiff must aver not only readiness, but actual performance or tender of performance on his part: Thomas v. Wickmann, 1 Daly, 58; Williams v. Healey, 3 Denio, 363; Beecher v. Conradt, 13 N. Y. 108. See Van Schaick v. Winne, 16 Barb. 89; Webb v. Smith, 6 Col. 365; Delaware etc. Canal Co. v. Penn. Coal Co., 50 N. Y. 250; Smith v. Brown, 17 Barb. 431; St. Paul Div. Sons of Temperance v. Brown, 9 Minn. 157; Griffiths v. Henderson, 49 Cal. 566.

Notice, Averment of.· Where both parties alike are supposed to be cognizant of a fact, notice need not be averred: Cole v. Jessup, 2 Barb. 309; Clough v. Hoffman, 5 Weud. 499; Carlisle v. Cahaba etc. R. R. Co., 4 Ala. 70; but if the matter is to be considered as lying more properly in the knowledge of the pleader than the adverse party, and it is a fact without notice of which the action could not be maintained, notice should be averred: Bush v. Critchfield, 4 Ohio, 103; Lent v. Padelford, 10 Mass. 238. If from the nature or terins of a contract a party is entitled to notice, it must be averred: Watson v. Walker, 23 N. H. 471; and the same rules apply to excuse of notice: Garvey v. Fowler, 4 Sand. 655.

Scienter or Knowledge, Averment of. Oct. 11, 1862, Where, as in some cases, knowledge $65. constitutes the gist of the action, it must be averred in order to maintain the action: Vrooman v. Lawyer, 13 Johns. 339; Tifft v. Tifft, 4 Denio, 175; Hubbard v. Russell, 24 Barb. 404. Thus, concerning an animal, other that one of those feræ naturæ, the person who keeps them is not liable for an injury alleged, unless he had notice of the vicious propensity of the animal: Fairchild v. Bentley, 30 Barb. 147; Earl v. Van Alstine, 8 Id. 630; Laverone v. Mangianti, 41 Cal. 138; S. C., 10 Am. Rep. 269; Partlow v. Haggarty, 35 Ind. 178; Wormley v. Gregg, 65 Ill. 251; Van Leuvey v. Lyke, 1 N. Y. 515; Worth v. Gilling, L. R. 2 C. P. 1. In actions for deceit in a sale of chattels, where fraud is the gist of the action, the scienter must be averred: Moore v. Noble, 53 Barb. 425; but in breach of warranty in a sale, this is not necessary: Id.; nor is it necessary in an action for trespass by defend ant's animal on plaintiff's lands: Van Leuvey v. Lyke, i N. Y. 515; Dickinson v. McCoy, 39 Id. 401. When these allegations are necessary, they should be positive and distinct: Spencer v. Southwick, 9 Johns. 314; Zabriskie v. Smith, 13 N. Y. 322; but it is sufficient to allege that the defendant "falsely and fraudulently represented," etc.

Fraud, Averment of. To maintain an action on the ground of fraud, it is not sufficient simply to aver fraud, but the facts and circumstances constituting the fraud must be set forth: Kinder v. Macy, 7 Cal. 207; Davis v. Ronson, 10 Id. 412; Oakland v. Carpentier, 21 1d. 666; Castle v. Bader, 23 Id. 77; Semple v. Hagar, 27 Id. 166; Kent v. Snyder, 30 Id. 674; Perkins v. Center, 35 Id. 726; O. & V. R. R. Co. v. Plumas County, 37 Id. 363; Sac. Sav. B. v. Hynes, 50 Id. 202; Chautauque County Bank v. White, 6 N. Y. 236; Libby v. Rosekrans, 55 Barb. 202; Butler v. Viele, 44 Barb. 166; Smith v. Sims, 77 Mo. 269; Darnell v. Rowl and, 30 Ind. 342; West v. Wright, 98 Ind. 335; Bailey v. Ryder, 10 N. Y. 363. A mere general charge of fraud is a legal conclusion, and insufficient: Clark v. Dayton, 6 Neb. 192; Butler v. Viele, 44 Barb. 166; O'Kendon v. Barnes, 43 Iowa, 615; Mason v. Searles, 56 Id. 532; Leavenworth etc. R. R. Co. v. Douglass County, 18 Kan. 169; Mut. Loan etc. Assoc. v. Price, 19 Fla. 127. The facts upon which the charge of

fraud is based must be specifically alleged in the complaint: Payne v. Elliot, 54 Cal. 339; Davis v. Robinson, 10 Id. 412. Plaintiff is not required by this rule to allege with minuteness all the particulars and circumstances which constitute the evidence of the alleged fraud, but he must make the charge with sufficient distinctness to enable his adversary to come prepared with his evidence upon the general questions of fraud which will be raised: Capuro v. Builders' Ins. Co., 39 Id. 125; Cummings v. Thompson, 18 Minn. 246; Cowen v. Toole, 31 Iowa, 513. And see Barber v. Morgan, 51 Barb. 116; Whittlesey v. Delaney, 73 N. Y. 571. A complaint which alleges that the defendants "in concert did, by connivance, conspiracy, and combination, cheat and defraud the plaintiffs out of certain goods of" a specified value, does not state facts sufficient to constitute a cause of action: Cohn v. Goldman, 76 N. Y. 284.

These rules do not apply to an agreed case where the facts are submitted to the court and matters of legal inference are all left to it: McRae v. Battle, 69 N. C. 98. Where the facts are not clearly known, they may be alleged in the alternative: Rasmussen v. McKnight, 3 Utah, 315. Fraud without damage gives no cause of action: Herron v. Hughes, 25 Cal. 559; Morrison v. Lods, 39 Id. 385. A simple conspiracy, however atrocious, unless it results in actual damage to the party, never is the subject of a civil action; and though such conspiracy be charged, the averment is immaterial and need not be proved: Herron v. Hughes, 25 Id. 559; Hutchings v. Hutchings, 7 Hill, 104. Where two or more are sued for a wrong done, it may be necessary to prove previous combination in order to secure a joint recovery, but it is never necessary to allege it; and if alleged, it is not to be considered as of the gist of the action; that lies in the wrongful and damaging act done: Herron v. Hughes, 25 Cal. 559.

Title or ownership, averment of. Title or ownership in plaintiff must generally be averred: See Palmer v. Smedley, 6 Abb. Pr. 205; S. C., 28 Barb. 468. The complaint should distinctly disclose the plaintiff's interest in the subject-matter: Wright v. Field, 64 How. Pr. 117. Thus, in an action for the possession of personal

property, a general or special ownership must be averred: Beckwith v. Phillis, 15 Wis. 223; Tandle v. Cram, 13 Kan. 344; Baker v. Cordwell, 6 Col. 199; St. Louis etc. R. R. Co. v. Hetch, 38 Ark. 357; Stickney v. Smith, 5 Minn. 486; Scofield v. Whitelegge, 49 N. Y. 259; S. C., 12 Abb. Pr., Ñ. S., 320; Thompson v. Strauss, 29 Hun, 256; Wright v. Field, 64 How. Pr. 117. But a general averment of ownership in the complaint is sufficient: Stall v. Wilbur, 77 N. Y. 162; Heine v. Anderson, 2 Duer, 318; Malcolm v. O'Reilly, 89 N. Y. 156; S. C., 14 Jones & S. 222; Berney v. Drexel, 63 How. Pr. 471, 475; Sturman v. Stone, 31 Iowa, 115; Simmons v. Lyons, 55 N. Y. 671; Barclay v. Quicksilver Min. Co., 6 Lans. 25. A complaint for conversion alleging the plaintiff's ownership in the present tense only is bad: Smith v. Force, 31 Minn. 119. But if ownership is once shown, the continuance thereof will be presumed, and need not be averred: Taylor v. Corbiere, 8 How. Pr. 385; Jaeger v. Hartman, 13 Minn. 55; Ven Rensselaer v. Bonesteel, 24 Barb. 355. In an action by an assignee in bankruptcy for assets, it is sufficient to allege that the defendant owns the property: Dabbman v. White, 48 Cal. 439. In actions upon notes, ownership is shown by alleging indorsement and delivery to plaintiff before maturity, and direct allegations that he is holder and owner are unnecessary: Farmers' Bank v. Wadsworth, 24 N. Y. 547; Ketelas v. White, 48 Cal. 439; though the latter would be sufficient: Mechanics' Bank v. Straiton, 36 How. Pr. 170; Holstein v. Rice, 15.Id. 1. If there be both a general averment of title or ownership and a special and particular averment, the latter will control, and if insufficient, the former will not be of any aid: Pinney v. Friedley, 9 Minn. 34.

Contracts, how pleaded. The contract must be either set out in full or its substance averred: Fairbanks v. Bloomfield, 2 Duer, 349; Adams v. Mayor etc., 4 Id. 295; Stack v. Heath, 4 E. D. Smith, 95; S. C., 1 Abb. Pr. 331; Alfaro v. Davidson, 8 Jones & S. 87; Stoddard v. Treadwell, 26 Cal. 294; Joseph v. Holt, 37 Id. 253. Compare Crawford v. Satterfield, 27 Ohio St. 421. The contract may be stated according to its legal effect: Stoddard v. Treadwell, 26 Cal. 294; Murdock v. Brooks, 38 Id. 603; Brown v. Champ

lin, 66 N. Y. 214. Where the contract contains several agreements, only the part claimed to be broken need be averred: Estes v. Farnham, 11 Minn. 434; Williams v. Healey, 3 Denio, 363; Sandford v. Halsey, 2 Jd. 235; Rollins v. St. Paul Lumber Co., 21 Minn. 5; Dorrington v. Myer, 8 Neb. 211; Crawford v. Satterfield, 27 Ohio St. 421; Detroit etc. R. R. Co. v. Forbes, 30 Mich. 165; McCampbell v. Vastine, 10 Iowa, 538. If the contract has been altered, the plaintiff must aver it as altered: Smith v. Brown, 17 Barb. 431; Baldwin v. Munn, 2 Wend. 399; and so, if it has been superseded by another, the latter should be pleaded alone: Chesbrough v. N. Y. & E. R. R. Co., 13 How. Pr. 557.

In pleading the breach of a contract the fact constituting it must be averred: Schenck v. Naylor, 2 Duer, 675; Ward v. Hogan, 11 Abb. N. C. 478; Branham v. Johnson, 62 Ind. 259; Marie v. Garrison, 13 Jones & S; 157; Whitehill v. Shickle, 43 Mo. 537. Seely v. Hills, 44 Wis. 484; Moore v. Besse, 30 Cal. 570; Saxonia etc. Co. v. Cook, 7 Col. 569, 575. The breach need not be set out in detail where it can be averred generally: Rowland v. Phalen, 1 Bosw. 43. The breach must be averred in terms sufficiently wide to show that the contract was unperformed to the extent claimed. Thus, where the only averment which was claimed to state a breach of a contract to deliver goods was the following, that "on the fourth day of December, 1864, at Pescadero aforesaid, the defendant refused to deliver said one thousand sacks of potatoes, or any part thereof, to plaintiff," the court said that was not an averment of a breach. The most that could be fairly claimed for it was that it was an allegation that defendant refused to deliver on that day: Moore v. Besse, 30 Cal. 571. In an action on a contract to pay money, non-payment must be alleged; a statement that the whole amount is now due is not enough: Roberts v. Treadwell, 50 ld. 520. The complaint in case of breach of contract for the sale of land must allege tender of conveyance: Bohall v. Diller, 41 Id. 532. For a form of complaint for breach of a lessee's agreement to pay taxes on the land, see Salisbury v. Shirley, 53 Id. 461.

Waiver of tort, and action on im

plied contract. - Plaintiff may waive a Oct. 11, 1862, tort and sue on the implied contract $65. created by the facts. Perhaps the better way of stating the proposition is, that plaintiff should allege the exact facts, and if they are such that an implied contract arises upon them, he is entitled to introduce evidence accordingly: Fratt v. Clark, 12 Cal. 90; Sheldon v. Uncle Sam, 18 Id. 526; Mills v. Barney, 22 Id. 246.

Writings, how pleaded. — A writing must be set forth in the pleading according to its tenor or legal effect, and if it is merely referred to or annexed as an exhibit, it will be stricken out as impertinent or irrelevant: Oh Chow v. Hallett, 2 Saw. 259.

Consideration, averment of. — In an action founded on a contract, where a consideration is not implied, it must be expressly averred: Spear v. Downing, 34 Barb. 522; Burnett v. Bisco, 4 Johns. 235. Since by § 748 [743] a sealed instrument implies a consideration, it is probably not necessary to aver it in an action on such an instrument: Paddock v. Hume, 6 Or. 82; Reddish v. Harrison, Wright, 221; Douglass v. Howland, 24 Wend. 35; Bush v. Stevens, 24 Id. 256; Northern Kansas Town Co. v. Oswald, 18 Kan. 336; and see the California cases construing a statute of that state, making written contracts presumptive evidence of a consideration: McCarty v. Beach, 10 Cal. 461; Wills v. Kempt, 17 Id. 101. Where the consideration of the contract sued on consisted of acts to be performed by plaintiff as a condition precedent to his right of recov ery, he must aver the consideration and its performance: Moore v. Waddell, 34 Id. 147; Becker v. Sweetzer, 13 Minn. 427. And where the consideration was a past act, the plaintiff must aver its performance at defendant's request: Parker v. Crane, 6 Wend. 647; Spear v. Downing, 34 Barb. 522. If the instrument declared on purports to be for "value received," and is recited in the complaint, a consideration is sufficiently alleged: Prindle v. Caruthers, 15 N. Y. 425; Meyer v. Hilsher, 47 Id. 265. Where a consideration must be pleaded, the complaint should disclose facts from which it will appear that there was a legal consideration to support the agreement sued on: Winne v. Colorado Springs Co., 3 Col. 155; Glasscock v. Glasscock, 66 Mo. 627; Dolcher v. Fry, 37 Barb. 152; Ross v. Sadgbeer, 21